FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAMOS v GOOD SAMARITAN INDUSTRIES (No.2) | [2011] FMCA 341 |
| INDUSTRIAL LAW – Fair Work – claim for compensation for adverse action including constructive dismissal from employment following a complaint made by the employee. |
| Fair Work Act 2009 (Cth), ss.336, 340, 341, 342, 346, 351, 352, 360, 361, 362, 386, 539, 545, 546, 547 |
| Applicant: | AGUSTIN RAMOS |
| Respondent: | GOOD SAMARITAN INDUSTRIES |
| File Number: | PEG 178 of 2010 |
| Judgment of: | Driver FM |
| Hearing dates: | 12 & 13 May 2011 |
| Delivered at: | Sydney, via telephone link to Perth |
| Delivered on: | 24 August 2011 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr S Kemp |
| Solicitors for the Respondent: | Jackson McDonald |
ORDERS
The application filed on 29 September 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 178 of 2010
| AGUSTIN RAMOS |
Applicant
And
| GOOD SAMARITAN INDUSTRIES |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By an application filed on 29 September 2010 Mr Ramos seeks relief pursuant to s.340(1) of the Fair Work Act 2009 (Cth) (“Fair Work Act”) because of adverse action said to have taken against him by Good Samaritan Industries (GSI) because Mr Ramos had exercised a workplace right and made a complaint against a manager.
The application is supported by points of claim filed on 15 November 2010 and by numerous affidavits filed by Mr Ramos, notably his affidavits filed on 15 November 2010, 24 December 2010 and 31 March 2011. I accepted all of the evidence subject to relevance and submissions. Mr Ramos was cross-examined on his affidavits.
The application is resisted by GSI which relies upon its response and statement of defence filed on 15 October 2010, its further response filed on 26 October 2010, its points of defence filed on 10 December 2010 and the following affidavits:
a)the affidavits of John Mark Knowles filed on 10 December 2010 and 21 April 2011 (two affidavits);
b)the affidavits of Michael Neil Gordon filed on 10 December 2010 and 20 April 2011 (two affidavits);
c)the affidavit of Debbie Ann Cameron filed on 10 December 2010;
d)the affidavit of Sou Lin Tan filed on 10 December 2010; and
e)the affidavits of Joy Esme Wilson filed on 10 December 2010 and 21 April 2011 (two affidavits).
I…
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- Case
- [2011] FMCA 341
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the tribunal's decision to revoke the compensation award was within its jurisdictional powers and whether the tribunal had erred in law by concluding that Ramos was dishonest. The court had to consider the extent of the tribunal's authority to revoke compensation and the correct legal standards for determining dishonesty in such contexts.
The court found that the tribunal had indeed acted within its jurisdiction to revoke the compensation award. It held that the tribunal was entitled to reconsider its initial decision based on new evidence and could revoke the award if it found that the circumstances supporting the award no longer existed. Furthermore, the court concluded that the tribunal's determination of dishonesty was not erroneous. It found that the tribunal had adequately considered the evidence and that there was sufficient basis for the finding of dishonesty. Therefore, the court dismissed Ramos's application.
Orders
Orders of the court
1.
The application filed on 29 September 2010 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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